Devolution and Exiting the EU: reconciling differences and building strong relationships Contents

3Questions around sovereignty and the two models of devolution

Sovereignty in the UK

12.Devolution in the UK must be understood in the context of the status of the UK as an EU member state when the devolution Acts were passed. The UK’s forthcoming exit of the EU has raised fundamental questions around sovereignty which were hitherto cracks papered over by the context of EU membership. Professor Richard Wyn Jones, Director of the Wales Governance Centre at Cardiff University, highlighted that we now have “tension between different conceptions of sovereignty, and this is one of the things that devolution has fundamentally changed”.13 The use of referendums to decide questions related to Europe,14 devolution and the status of Northern Ireland within the UK has raised the profile of the notion of popular sovereignty. Professor Wyn Jones considered that the establishment of legislatures and governments in Scotland, Wales, Northern Ireland and London, underpinned by a democratic mandate, has led to fundamentally different views about the very nature of the UK. He went on to assert that if the UK Government wants to reassert Parliamentary sovereignty there will be constant conflict with the devolved level of government.15 Addressing the question of whether Parliamentary sovereignty at Westminster is now qualified, Professor Wyn Jones said that the issue is what qualification means as ultimately devolution has raised conceptions of legitimacy and sovereignty that are competing with one other, which have not been resolved.16

13.Professor Michael Keating, Director of the Centre on Constitutional Change at Edinburgh University, told us that there are both historic and contemporary questions around whether the UK “is a unitary state, in which the principle of Parliamentary sovereignty is the be all and end all of the constitution, or whether it is a union in which sovereignty is shared.”17 He said that the historic ambiguity in the UK constitution goes back at least to the Acts of Union 1707.18 This ambiguity was brought to the fore in MacCormick v. Lord Advocate in the Court of Session in 1953, where the Lord President’s judgement said “the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law”.19

14.The judgement went on to note that that the Act of Union 1707 extinguished the parliaments of England and Scotland and brought a new Parliament of Great Britain into existence, and the court opined that it was difficult to see why the new parliament should inherit characteristics of the English but none of the Scottish Parliament.20 Professor Keating said that when the “multinational nature of the United Kingdom was given an institutional expression” with the creation of devolved institutions in 1998, this gave rise to a view of the UK constitution as one of a union of diversity where the division of power means “we must rethink what is meant by Westminster sovereignty”.21

15.The contemporary questions around sovereignty Professor Keating highlighted arise because, while the devolution Acts make clear that Westminster is supreme, most of the UK constitution hinges not on “black letter law” but upon convention.22 Professor Keating told us that there has been a practice of avoiding these questions for the last 20 years, during which time conventions have “developed and grown”.23 According to Professor Keating, leaving the European Union is “a shock to the constitution” that makes the avoidance of these questions more difficult and “certain things will have to be written down that were not written down in the past”.24

16.There is now a clear sense in the devolved institutions that notions of sovereignty have been altered by the creation and development of devolution since 1998. For example, the Rt Hon Carwyn Jones AM, First Minister of Wales, said that he was “unconvinced that the sovereignty of the UK Parliament is the way forward” and considered that, while the UK Parliament may have the legal power to override anything, politically it would now be very difficult to do.25

17.Michael Russell MSP, Scottish Government Minister for UK Negotiations on Scotland’s Place in Europe, talked of devolution as an “established constitutional settlement” that is being undermined by the UK Government through the European Union (Withdrawal) Bill.26 Professor Adam Tomkins MSP, Shadow Cabinet Secretary for the Constitution, Communities, Social Security and Equalities, stated that there needed to be greater understanding that the UK “is not a unitary state; it is a multi-Government state, it is a multinational state. Leaving the European Union does not mean in any way that we revert to the constitution of 1972”.27 In relation to Northern Ireland, we have also heard that the “constitutional foundations” of the Belfast Agreement and subsequent Northern Ireland Act 1998 include the “principle of consent”.28 This is the principle established through Belfast Agreement that Northern Ireland is part of the UK by consent of the people of Northern Ireland, and that the constitutional status of Northern Ireland (i.e. a united Ireland) could only be changed by the consent of the people of Northern Ireland, established though a vote. It is this principle of consent that “keeps Northern Ireland in the United Kingdom”.29

18.The Rt Hon David Lidington MP, Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office (“the Minister”) told us that the UK Government’s position is that “ultimately, the ultimate sovereignty of the Westminster Parliament is a constitutional fact”.30 He further stated that nothing in the devolution Acts detracts from the ultimate sovereignty of Westminster to legislate for the UK.31

19.UK Governments have repeatedly noted that “the current devolution settlements were created in the context of the UK’s membership of the EU”. This EU context has masked many of the key constitutional questions and ambiguities raised by the introduction and subsequent development of devolution since 1998. With the UK leaving the EU, many questions and ambiguities have now been exposed and need to be addressed.

20.The ultimate supremacy of the UK Parliament is legal fact as several witnesses, including the Minister, have recognised. However, sovereignty is a political concept that does not always obey legal direction. The introduction of popular sovereignty through the use of referendums, the establishment of devolved governments for the nations of Scotland, Northern Ireland and Wales, and the commitments made when establishing them, have introduced political considerations that have arguably qualified sovereignty within the UK and changed the balance of power.

21.Devolution is now an established and significant feature of the UK constitutional architecture and should be treated with respect to maintain the integrity of the United Kingdom. The Government needs to bring clarity to the situation by setting out, in response to this report, its Devolution Policy for the Union. A document setting out the Government’s Devolution Policy for the Union should be issued at the start of every Parliament. This policy should outline where the constitutional architecture of devolution needs to be buttressed or amended and should, where necessary, provide justification for asymmetry within the devolution settlement. While we accept that asymmetry may be necessary and even preferable within the UK context, the Government should explicitly recognise and be held accountable for representational and institutional asymmetries within the UK political system.

Two models of devolution: the reserved powers model and the conferred powers model

22.To understand devolution in the UK in 2018, as the UK prepares to exit the European Union, it is important to understand the two models of devolution that have been used in different parts of the UK: the reserved powers model and the conferred powers model.

23.The differences between these two constitutional positions can be understood by considering a hypothetical devolution of powers to choose sweets. Under the reserved powers model, all legislative power is devolved except those matters expressly reserved under the devolution legislation. If sweets selection is a devolved matter, a devolved legislature has the power to choose whatever sweets it wants. However, while the UK is an EU Member State, a devolved legislature’s selection is limited by the range of sweets determined at the EU level. These same EU selection constraints apply equally to the UK Parliament when it selects sweets for England. Leaving the EU removes the EU constraints over sweet selection. Under the reserved powers model, sweet selection is a devolved matter and so, after leaving the EU, a devolved legislature’s existing powers allow it to choose sweets without constraint. Similarly, from EU exit day, the UK Parliament would have the same power to exercise wider sweet selection for England. On this view, all legislatures continue to exercise the same sweet selection powers, but over a wider range of sweets.

24.Under the conferred powers model, only a particular set of powers to select sweets within EU constraints is devolved. After leaving the EU, the devolved legislature would retain the power to select sweets from the same restricted selection and its powers would, therefore, be unchanged. Under this model any powers not conferred to the devolved institution by default flow to the UK Parliament. On this view, taking back the power to the UK Parliament to maintain the EU restriction on sweet selection is in line with the devolution settlement for all areas of the UK. In other words, if a devolved legislature became able to choose from a wider selection of sweets than before, this would be viewed as an increase in the scope of its devolved powers, not a continuation of the status quo.

25.Professor Page told us that “the Scottish settlement from day one has been a reserved powers model”.32 The Scotland Act 1998 lists in Schedule 5 matters which are reserved to the UK Parliament, which means that “the Scottish Parliament has the power to legislate in all areas save for those reserved”.33 Professor Nicola McEwen, Professor of Politics at Edinburgh University, told us that the way to understand the devolution settlement, which she has been teaching to students in relation to Scotland for two decades, is that there is a defined set of reserved powers and, by default, everything else is devolved.34 Having previously operated under a conferred powers model, Wales moved to a reserved powers model in the Wales Act 2017, which came into force in Wales from April 2018.35 Professor Keating told us that the model of devolution in Scotland, Northern Ireland and now Wales “is a pretty clear division of powers between the two levels because of the reserved model—that everything is devolved if it is not explicitly reserved”.36

26.The logic of the devolution model in Northern Ireland is that “anything that is not listed as reserved or excepted is automatically devolved”.37 While this is similar to the devolved model which applies in Scotland and now Wales, there are key differences. Northern Ireland has an excepted, reserved and transferred (devolved) matters model.

27.Excepted matters are those viewed as matters of national importance such as international relations and are the responsibility of the UK Parliament and are outside the competence of the Northern Irish Assembly and cannot be transferred (devolved).38 These are listed in Schedule 2 of the Northern Ireland Act 1998. Reserved matters are matters which are considered UK-wide issues, for example broadcasting and genetic research; these are also the responsibility of the UK parliament but could be transferred later with cross party support.39 These are listed in Schedule 3 of the Northern Ireland Act 1998. Policing and criminal justice were reserved but these matters were devolved and therefore moved to the transferred field on 12 April 2010. Transferred matters are anything that is not excepted or reserved and, as the Government’s Devolution Guidance sets out, transferred matters are considered devolved.40

The contradictory views of devolution

28.The preparations for the act of the UK leaving the EU has brought out contradictory views of how the UK’s devolution settlement will operate in the future. The reserved powers model of devolution has been in place since devolution was first introduced in Scotland, and the model has now been extended to Wales. The previous system of devolution in Wales was a conferred powers system, and was altered following the first recommendation of the Commission on Devolution in Wales report (“the Silk Commission”), Empowerment and Responsibility: Legislative Powers to Strengthen Wales.41 In reaching its conclusions, the Silk Commission explicitly set out in its report that, under the conferred powers model, any issues not considered at the time the legislation was passed would rest with the UK Parliament, whereas under the reserved powers model any such powers would default to the devolved institutions.42

29.Professor Page explained that the model of devolution implied by the UK Government in the drafting of the European Union (Withdrawal) Bill was that the devolved institutions’ powers were limited while in the EU by EU law and “therefore, they should continue to be bound after exit day”, meaning legislative authority on those matters would lie in Westminster.43 This view mirrors the conferred powers model so that the devolved institutions would, in effect, have the same powers over the same areas of competence on the day of exit from the EU as they had the day before exit. The position expressed by the devolved institutions themselves was that, because the devolution settlement is based on a reserved powers model, anything not stated as a reserved power in the devolution Acts is by definition a devolved power. Therefore, when EU constraints in areas not reserved to Westminster under the devolution Acts are removed on leaving the EU, these powers should flow back to come under the immediate competence of the devolved administrations.

30.The Minister told us in evidence that “more than 80 new competencies” will transfer to the devolved level immediately the UK exits the EU, and no competence that devolved institutions currently exercise is being removed.44 The Minister said that that the allocation of powers in the Scotland Act 1998, as debated in 1997 and 1998, was based on the “assumption by everybody … that there were certain things where authority would be exercised at European level”.45 This statement makes clear the Government’s understanding of devolution as a set of devolved powers limited by the EU-level authority. He further explained that for the UK Government to say that a matter is devolved:

It means that powers have been conferred by this Parliament upon a democratically elected body and an Executive in part of the kingdom, together with either a complete or fair degree of autonomy in how those powers should be exercised.46

31.The UK’s withdrawal from the European Union was an eventuality not contemplated at the time of the establishment of the various devolution settlements. Brexit has exposed problems arising under those settlements, most particularly the need to ensure UK-wide regulatory consistency where necessary to preserve the integrity of the UK’s internal market and to ensure that the ability of the UK Government to conclude international agreements, especially free trade agreements, is not constrained. Although, there remains some variation in the different devolution settlements, the shifting of Wales from a conferred to a reserved powers model indicates that the reserved powers model is now the constitutionally preferred model for devolution within the UK. Powers are not conferred by the UK Parliament onto the devolved legislatures, rather particular matters are reserved to the UK Parliament and all other areas devolved.

32.The Government must recognise that the reserved powers model of devolution means that powers are devolved by default and not conferred by the UK Parliament. This should be set out as the first item of an expanded Memorandum of Understanding on Devolution. Nevertheless, we acknowledge the practical difficulties that arise from Brexit, and the Government’s need to find practical solutions to address them (see Chapter 6).

13 Q125 [Wyn Jones]

14 This refers to the 1975 referendum on EEC membership and the 2016 referendum on EU membership

15 Q150 [Wyn Jones]

16 Q126 {Wyn Jones]

17 Q491 [Keating]

19 MacCormick v Lord Advocate 1953 SC 396

20 MacCormick v Lord Advocate 1953 SC 396

21 Q491 [Keating]

22 Q491 [Keating]

23 Q491 [Keating]

24 Q491 [Keating]

27 Q553 [Tomkins]

28 Q666 [Gormley-Heenan]; Q142 [Anthony]

29 Q666 [Gormley-Heenan]; Q142 [Anthony]

32 Q17 [Page]

33 Q17 [Page]

34 Q103 [McEwen]

35 ‘A process, not an event’: Devolution in Wales, 1998–2018, House of Commons Library Briefing paper 08318, 11 July 2018

38 Cabinet Office / Northern Ireland Office, Devolution settlement: Northern Ireland, 20 February 2013

39 Cabinet Office / Northern Ireland Office, Devolution settlement: Northern Ireland, 20 February 2013

40 Cabinet Office / Northern Ireland Office, Devolution settlement: Northern Ireland, 20 February 2013

41 Empowerment and Responsibility: Legislative Powers to Strengthen Wales, Commission on Devolution in Wales, March 2014, R1

42 Empowerment and Responsibility: Legislative Powers to Strengthen Wales, Commission on Devolution in Wales, March 2014, 4.3.3

43 Q13 [Page]

44 Q789 [Lidington]

Published: 31 July 2018